Mississippi Products, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1953

103 N.L.R.B. 1388 (N.L.R.B. 1953)

1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MISSISSIPPI PRODUCTS , INC. and INTERNATIONAL UNION OF ELECTRICAL,
RADIO & MAcHINE WORKERS , CIO. Case No. 15-CA-4W. April
2,1953
Decision and Order
On January 30, 1952, Trial Examiner George A. Downing issued
his Intermediate Report in this proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action as set forth in the copy of the Intermediate
Report attached hereto. He also found that the Respondent had not
engaged in other unfair labor practices alleged in the complaint and
recommended dismissal of those allegations. Thereafter, the General
Counsel and the Respondent filed exceptions to the Intermediate Re-
port and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed 2 The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions 3 and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommendations of the Trial
Examiner.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Mississippi Products, Inc.,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees as to their union membership, ac-
tivities, and sympathies and as to the possession of union cards, or
engaging in such interrogation through the guise of interviewing
employees as prospective witnesses; and warning employees to avoid
union adherents.
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Styles and Peterson].
2 As the General Counsel could, under Rule 43 (b) of the Federal Rules of Civil Pro-
cedure, make the Respondent's witnesses his own, we find no prejudice in the Trial
Examiner's following the general rule in confining the General Counsel's cross-examination
of such witnesses to the subjects of their direct examination.
For the reasons stated in Standard Dry Wells Products, Inc., 91 NLRB 544, we deny
the General Counsel's request that we reverse the Trial Examiner's credibility findings.
4 In addition to the factors considered by the Trial Examiner in finding the Respondent
responsible for the conduct of Marron, we note that he was admittedly in charge of certain
aspects of the Respondent's personnel relations. See Salant 4 Saiant, Inc., 92 NLRB 843.
361.
103 NLRB No. M.
MISSISSIPPI PRODUCTS , INC. 1389
(b) In any like manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Union of Electrical,
Radio & Machine Workers, CIO, or any labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purposes of collective
bargaining and other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action :
(a) Post in its plant at Jackson, Mississippi, copies of the notice
attached to the Intermediate Report and marked "Appendix B." 6
Copies of said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being signed by Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it charges Respondent with violations of Section
8 (a) (3) of the Act.
s This notice is hereby amended by striking the words "The Recommendations of a Trial
Examiner" and substituting the words "A Decision and Order." In the event that this
Order is enforced by a decree of the United States Court of Appeals , there shall be substi-
tuted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree
of the United States Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Rela-
tions Act as amended ( 61 Stat. 136), was heard in Jackson , Mississippi, on
November 10-14 , 1952, inclusive , pursuant to due notice to all parties ' All parties
were represented by counsel or by respresentatives and were afforded full op-
portunity to be heard , to examine and cross-examine witnesses , to introduce
1 The General Counsel and his representative at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board . The above-
named Respondent is referred to as Respondent and the charging union as the Union. The
summary of the pleadings hereinafter made includes various amendments made during the
course of the hearing.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relevant evidence, to argue orally, and to file briefs and proposed findings and
conclusions. Briefs have been filed by the General Counsel and by Respondent.
The complaint, issued on August 21, 1952, by the General Counsel of the Na-
tional Labor Relations Board, and based on charges filed by the Union and served
on Respondent, alleged in substance that Respondent had engaged in unfair
labor practices proscribed by Section 8 (a) (1) and (3) of the Act by (a) dis-
charging discriminatorily Clinton Broadwater on November 25, 1951; (b) lay-
ing off discriminatorily Vernon Purser on December 3, 1951, James P. Evans on
January 20, 1952, and Hollis Jordan, Otis Gordon, and John R. Sistrunk on
January 28, 1952; (c) discriminatorily failing to reinstate Broadwater and
Purser and discriminatorily failing to reinstate Evans, Gordon, Jordan, and
Sistrunk until specified dates in February and March 1952; and (d) engaging in
specified acts of interference, restraint, and coercion since October 1, 1951.
Respondent's answer filed August 29, 1952, denied the allegations of the com-
plaint relating to unfair labor practices. The answer also averred affirmatively
that the terminations had been made in all cases "for good cause," and that the
other statements and conduct alleged in the complaint were privileged under
the Act.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Mississippi corporation, is a wholly owned subsidiary of
Sears, Roebuck and Company ; it is engaged in the manufacture of radio and
television cabinets and other furniture products in its plant at Jackson, Missis-
sippi. During the 12-month period ending June 30, 1952, it purchased raw
materials valued in excess of $150,000, of which approximately 10 percent were
from extrastate points. During the same period it manufactured, sold, and
distributed finished products of a value in excess of $300,000, of which approxi-
mately 50 percent were sold for extrastate distribution. It is therefore con-
cluded and found that Respondent is engaged in interstate commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which admits to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and issues
Respondent's plant, established in 1946, has employed at times material to
the issues a working force which fluctuated from a low of 750 at one time in
1951, to around 1,500 at the time of the hearing. Various unsuccessful attempts
have been made both by CIO and AFL unions to organize the production em-
ployees. One such attempt by International Woodworkers of America (CIO)
in 1948, led to an election and an unfair labor practice proceeding in which
Respondent was charged, as here, with various acts of discrimination and of
interference, restraint, and coercion. The latter proceeding was dismissed in
its entirety, after a hearing, by Trial Examiner C. W. Whittemore on June
30, 1949 (IR-1910; Cases Nos. 15-CA-46, 15-RC-54).
The organization drive out of which the present charges arose began in late
October 1951. Respondent soon became aware of the campaign and took im-
MISSISSIPPI PRODUCTS, INC. 1391
mediate steps to combat it through speeches to the employees and through
articles in its plant newspaper, The Cabineteer, all of which were frankly anti-
union in tone and content.' On them and on a series of alleged interrogations
and coercive statements the General Counsel based his case of unlawful inter-
ference, drawing from them, as well, the chief support for his contention that
the discharge and the layoffs were discriminatorily motivated.
The issues presented herein are largely factual and turn on the credibility of
witnesses. The testimony of the General Counsel's witnesses has not been cred-
ited as to a number of alleged coercive statements because, in the face of Re-
spondent's countervailing evidence, it has not generally been found to be reliable,
except insofar as it implicated Frank Marron, for whose acts Respondent is
found responsible.
B. Interference, restraint, and coercion
1. The speeches
On November 13, President Huth made a lengthy speech to the employees over
the public-address system' on the subject of the Union's organizing campaign,
and that speech was later published (with some deletions) in the November
issue of The Cabineteer. The draft as allegedly read by Huth and a copy of
the reprint were received in evidence. The General Counsel also offered the
testimony of Vernon Purser, Fred Dear, and John R. Sistrunk that Huth's speech,
as they heard it over the loudspeaker, contained statements outside the text of
that which Huth claimed to have followed.
Thus, the three witnesses agreed that Huth referred to the fact that the
organizing campaign was especially active in the cabinet room (in which all the
alleged discrimination later occurred). Purser testified that Huth also said
that if the Union came in the plant might close down, but that testimony received
no corroboration from Dear or Sistrunk. Furthermore it was apparent on cross-
examination that Purser had not attempted to testify to what Huth had actually
said but had given only his opinion, interpretation, or impression formed from
hearing the speech. In any event the Trial Examiner credits Huth's testimony
that he adhered to the text of the written speech ; and attention is accordingly
turned to the question whether it contained in itself any statements of a coercive
nature.
During the hearing the General Counsel took the position that the entire
speech constituted interference, restraint, and coercion, but in his brief he nar-
rowed his contentions to two minor portions to be later referred to. Though
the speech was frankly antiunion in tone and content, it cannot be said as a
a For the purpose of establishing Respondent 's antiunion attitude , the General Counsel
was also permitted to offer testimony as to three alleged instances of interrogation by
employment supervisor Carroll during employment interviews in 1947 (Hollis Jordan),
1948 (Fred Dear), and 1950 (Clinton Broadwater). Carroll denied that testimony.
Though Carroll normally hired several hundred employees a year , no evidence was offered
that he interrogated employees at any time during the period covered by the complaint.
Furthermore , two of the alleged incidents had occurred prior to the unfair labor practice
proceeding referred to above. Under the circumstances, no credence has been given to the
alleged "background " evidence of Respondent 's antiunion attitude , though other evidence
in the record established that Respondent was openly opposed to the organization of its
employees.
$ Huth had made an earlier speech on November 5, in which he announced a wage
increase , but there is no evidence that the announcing or granting of that increase was
for the purpose of interfering with union activities , and, indeed , none that Respondent had
by that time acquired knowledge that an organizing campaign was under way.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole to be violative of Section 8 (a) (1), since by far the great bulk of it was
privileged as free speech, being free of threat of reprisal and promise of benefit
(see Section 8 (c) ). Specifically the General Counsel contends that the following
statement (which incidentally was omitted from The Cabineteer) is of coercive
character when considered in context with the entire speech:
Do you know that the C. I. O. has publicly boasted that there will be "blood-
shed" and "people killed" in the South in the C. I. O.'s Organization Drive?
Standing alone, and whether true or untrue, the statement is a simple state-
ment of fact, with neither threat nor suggestion of reprisal or force on Respond-
ent's part. And neither the immediate context of the statement nor the entire
speech supplied either such a threat or a promise of benefit as would remove the
free speech privilege.
The General Counsel's remaining contention relates to the exact wording of
the following statement, which might be considered as implying a threat to close
the plant if it were read as it stood before the correction which appeared in the
face of the draft as indicated below :
This Union that seeks and implores you to turn your security, your freedom
into their hands has caused these Westinghouse electrical employees to lose
more time out of work than at work, through 88 strikes during the year
1950; and, 33 more strikes during the first half of 1951, at which time the
Company gave up and closed the Plant for 4 weeks. Is this Union SECU-
RITY? Well, it could happen to you-it could happen to anyone who places
his security in the hands of this Union with its past reputation.
There is no evidence that Huth did read the word as "will," save for Purser's
uncorroborated testimony above referred to that Huth had said that if the Union
came in the plant might close down. Huth's testimony that the correction was
made before the speech was read and that he followed the corrected draft is
credited. It is also noteworthy that the reprint in The Cabineteer, published
only 8 days later, followed the corrected draft.
It is, therefore, concluded and found that Huth's speech was not violative of
Section 8 (a) (1), either in its entirety or in the specific portions assailed by the
General Counsel.
On November 9, Marron, at Rutledge's direction, read to the employees over the
public-address system a short statement which Rutledge had prepared, which
referred to the Union's distribution of campaign literature at the gate, and which
exhorted the employees to think carefully before signing union cards because
(among other things) of the "trouble" other unions had "tried to cause MPI
employees" in earlier campaigns. The statement also referred to numerous
strikes at other plants organized by the Union; and it concluded, "Do not act
hastily. Your future is at stake."
Purser testified for the General Counsel that Marron's talk included the state-
ment that the employees' jobs might depend on what they did about signing union
membership cards, and that Marron also called the CIO leaders "sorry Com-
munist krauts." Dear testified that Marron stated that "a lot depended on what
happened to those leaflets," but that he said nothing about krauts and called no
names. Marron and Rutledge testified that Marron adhered to the text of the
draft, which did not contain the statements which Purser testified to. Their
testimony is credited, and it is found that Marron's talk, which was privileged
as free speech, was not violative of Section 8 (a) (1).
MISSISSIPPI PRODUCTS , INC. 1393
2. Interrogation and coercive statements
James P. Evans testified that in late November he showed the green rat poster
(later more fully adverted to) to Harry O'Byrnes, a line supervisor , who in-
quired if Evans was "one of them too." The poster purported to identify Evans,
among others , with IEU-CIO. O 'Byrnes denied both that Evans had shown the
poster to him and that he made the alleged inquiry, but admitted that Sistrunk
had shown him the poster. O'Byrnes' testimony is credited. It must be noted,
however, that were Evans' testimony accepted, it would not establish that
O'Byrnes' inquiry was violative of the law. Thus, under Evans' testimony he
did not explain his purpose in exhibiting the poster to O'Byrnes, whose inquiry
under the circumstances might be regarded as an understandably spontaneous
reaction, which would not tend to interfere with, restrain, or coerce employees,
within the meaning of Section 8 (a) (1). U. S. Gypsum Co., 93 NLRB 966, 968.
John R. Sistrunk testified that on or about December 10, while O'Byrnes was
accompanying him to Rutledge's office, he jokingly inquired of O'Byrnes, "what
does Mr. Rutledge want me to do, sign a union card?" and that O'Byrnes inquired,
"well, you have already, haven't you?" O'Byrnes testified that Sistrunk's
inquiry was whether Rutledge wanted him to sign another union card, and that
his own response was, "I don't know ; have you signed one already?"
There is little to choose between these versions, though O'Byrnes' is accepted
as inherently more probable. In neither case, however, can a violation of the
Act be predicated upon O'Byrnes' response, since it was provoked by Sistrunk's
own facetious inquiry. U. S. Gypsum Company, supra; Beaver Machine and
Tool Co., Inc., 97 NLRB 33; Tennessee Coach Co., 84 NLRB 703, 726; Dixie
Culvert Manufacturing Co., 87 NLRB 554.
Clinton Broadwater testified that in late October or early November, during
a discussion of the Union with William Lum, a supervisor , Lum questioned him
as to his opinion of the Union and stated his own opinion that if the Union
came in the plant would probably close down because it had a lot of stock on
hand and could therefore afford to close. Lum flatly denied having any such
conversation.
This incident presents the common A versus B situation, with little help from
other facets of proof to aid in resolving credibility. However, Broadwater's
testimony is found herein not to be worthy of credit on other points 4 and it is
not credited here.
The bulk of the alleged instances of violations of Section 8 (a) (1) Involved
Frank Marron, responsibility for whose acts Respondent denies. There is no
doubt under the evidence as a whole that Marron was not a supervisor within
the meaning of the Act .5 However, there is likewise scant question that Marron
occupied a strategic position to translate to the employees the policies and desires
of management and that he was unquestionably identified with management
in the eyes of the employees in such a way as to cause them to look to him for
guidance regarding the Respondent's policies. Harrison Sheet Steel Company,
94 NLRB 81, enfd. 194 F. 2d 407 (C. A. 7) and cases there cited; cf. International
Association of Machinists, 311 U. S. 72.
4 I. e., the hiring interview with Carroll previously mentioned and the alleged discharge
interview with Marron ( see footnote 5). Broadwater 's testimony was also unreliable in
seeking to explain his absence in November ( for which he was discharged ) and his excuses
for failing to arrange transportation to the plant (infra, sec. C, 1).
6 Insofar as the General Counsel 's witnesses imputed to Marron functions in connection
with the hiring and termination processes , their testimony is not credited . In particular,
Broadwater 's testimony is not credited that Marron filled out "discharge papers" and com-
plained of his part in "the dirty work" of discharging Broadwater.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That conclusion, based on the entire evidence, rests mainly on the following
facts: (1) Marron occupied a private office somewhat less spacious than Car-
roll's and Rutledge's,' and until recently the public-address system was operated
from it; (2) it was Marron whom Rutledge selected to make to the employees
over the public-address system the antiunion speech of November 9, in which
Marron was obviously speaking as the voice of management; (3) Marron served
ostensibly as editor of The Cabineteer; ° and (4) Marron was manager of Re-
spondent's athletic teams, composed of the employees.
It is, therefore, concluded and found that Respondent was responsible for
such of Marron's acts and statements as are herein found to have been committed.
Fred Dear testified that some time after the Union drive started, Marron
questioned him as to whether he had attended a union meeting the previous
night, and that in January 1952, Marron inquired whether Dear was "mixed
up in this Union business," and stated that, "A Union stooge said you were."
Marron also warned Dear that, "You better stay away from them boys or they'll
get you into trouble."
James Russell testified that around mid-November, Marron questioned him as
to whether he had heard anything about the Union, and then pointed out Otis
Gordon as one of the "organizers" around the plant 8
Lavalle Meadows testified that after the union activity began Marron inquired
whether he knew if anyone had any union cards and stated that he had heard
that Mullins, another employee, had some.
Vernon Purser testified that while he was in the personnel offices on January 2,
he overheard Marron and/or Carroll recite the following rhyme : "It can be done
in '51; we'll have a new crew in '52." There was no evidence, however, which
linked that bit of doggerel to the Union or to union activities. Furthermore,
Respondent's evidence established that the first line of the rhyme had constituted
the Company's production slogan for 1951, and that the second line, originated
by Turner, referred to the fact that because production hopes had not been
realized for 1951, changes might be expected on the production staff. Indeed,
Turner's prediction was later to take an ironic turn in his own case, since he
was subsequently demoted because of the poor showing of the assembly depart-
ment, which was under his supervision.
Valentine D. Barry, who had been laid off in June 1951, and who had not
been reinstated, testified that he talked with Marron in February or March 1952,
concerning the Company's failure to reinstate him, though it was advertising
for new employees. During the conversation Barry reported to Marron that
employees had informed him that Marron had solicited them to "pimp," i. e.,
to see who "was for the Union and who wasn't." Barry testified that Marron
admitted that the report was true, and "that is my job."
Dear and Russell also testified to separate conversations with Marron some 2 or
3 weeks prior to the hearing in which Marron questioned them about the pos-
sibility that they might be witnesses in the case and asked them various questions
9 Though Lester and Pinter, who were without supervisory status, also had an office,
they shared theirs. There is also no evidence that their status or duties were in any
manner comparable to Marron's.
4 The paper itself did not specify who was its editor. However, Marron did most of the
actual news gathering (particularly among the employees ), the writing of news stories,
and most of the other work in actually getting the paper out, all under Rutledge 's direction.
Though Rutledge testified that he "supposed " that he himself might be called the editor,
there was no indication from the evidence that the employees were informed or understood
that Rutledge served in that capacity.
8 Russell 's testimony concerning a conversation with Marron at the time of a general
layoff in June 1951 , was stricken on Respondent 's motion , with the General Counsel's con-
sent, as outside the scope of the issues.
MISSISSIPPI PRODUCTS, INC . 1395
concerning whether he or any foreman had discussed the Union with them. Ac-
cording to Dear, Marron pretended to put the questions as if he were an attorney
for the Government. Dear admitted, however, that Marron assured him that he
should say what he wanted to if he got a subpoena.
Dear also testified that on the Friday before the hearing, Marron sent for him
and questioned him about why he had not been so friendly as before. When Dear
mentioned the fact that he had received a subpoena from the General Counsel,
Marron assured him that that constituted no basis for a "falling out," and advised
Dear to tell the truth to the best of his knowledge. Dear testified, however, that
Marron then questioned him further about their conversations concerning the
Union, and that he reminded Marron of some of the statements Marron had made.
Marron did not, however, attempt to persuade Dear to change his testimony in
any respect.
Marron admitted that occasions had arisen when he had discussed the Union
with employees, but explained that such occasions arose when employees inquired
his own opinion of the Union. He admitted having discussed the Union with
Dear, Russell, and Meadows but denied their versions of the conversations. He
denied specifically having informed Barry that it was his job to get employees to
inform on the Union.
Marron also admitted that he had talked with Dear and Russell , as well as
with Meadows and other employees, about the possibility of their testifying as
witnesses at the hearing. Marron explained that Rutledge had shown him the
"charges" (i. e., the bill of particulars) which the Board had filed against him
concerning the interrogation of employees, etc., and that without direction from
Rutledge or anyone else, he set out to procure among the employees proof that he
had not committed the alleged acts. Marron testified that he had no knowledge
that any of the employees with whom he talked would be subpenaed by the Gov-
ernment, but that he interviewed them as prospective witnesses for the Company,
and that he assumed from their answers that some of them might be called
by the Company. Marron testified that he made no attempt to influence their
testimony but told them to be sure to tell the truth.
As is seen, the General Counsel's witnesses testified to a number of conversa-
tions with Marron which, though separate, were generally similar in character
and content. Marron's unsupported testimony is insufficient to overcome the
cumulative weight of that testimony, which (with the exception of Barry's) may
be considered as mutually corroborative. Barry's testimony cannot, however, be
credited over Marron's denials, inasmuch as Barry admitted animus on his part
because of his layoff, despite long service, in June 1951, and because of Respond-
ent's failure to recall him. Barry's testimony was otherwise basically and in-
herently improbable, both in his claim that Marron had engaged with him in a
3-hour conversation during working hours and as to the alleged content of the
conversation, particularly as regarded Marron's alleged admission that it was
part of his job to have employees inform on union activities.
Concluding Findings
It is concluded and found that by Marron's interrogation of employees as to
their union membership, activities, and sympathies and as to the possession by
employees of union cards, by his pointing out of Gordon as one of the union
organizers, and by his warning to Dear to "stay away from them [Union] boys,"
(Montgomery Ward Co., 93 NLRB 640; cf. Tampa and & Material Co., 91 NLRB
868, 878), Respondent engaged in interference, restraint, and coercion within the
meaning of Section 8 (a) (1).
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marron's interviews of employees concerning their possible appearance as
witnesses at the hearing requires special consideration . The Board has, in
a number of cases, dealt with the question of an employer 's right to interview
employees in the course of preparations for hearing of an unfair labor practice
complaint. It has held , with court approval , that an employer is privileged to
make such interviews for the purpose of discovering facts within the limits of
the issues raised by the complaint where he or his counsel does so for the pur-
pose of preparing his case for trial and does not go beyond the necessities of
such preparation to pry into matters of union membership , to discuss the nature
or extent of union activity, to dissuade employees from joining or remaining
members of a union, or otherwise to interfere with the statutory right to self-
organization. Joy Silk Mills, Inc., 85 NLRB 1263, 1290 enfd. as mod., 185 F. 2d
732 (C. A. D. C.) cert. denied 341 U. S. 914. And see N A W Overall Company,
Inc., 51 NLRB 1016; May Department Stores Company, 70 NLRB 94.
Marron's actions were, however, plainly outside that privileged field. Marron
was not an attorney, nor did his activities constitute trial preparations on
Respondent's part. Indeed, they were undertaken by Marron sua sponte, and
without explanation to the employees of the purpose of the interviews save
the statements at the conclusion that they might be subpenaed as witnesses.
(Cf. Katz Drug Company, 98 NLRB 867). Marron's inquiries concerning his
earlier discussions of union activities with them constituted, indeed, aggrava-
tion of the coercive effect of his original interrogations, and this despite the
finding here made that he did not attempt to persuade the employees to change
their testimony or to interfere in the giving of it.
It is, therefore, concluded and found that by Marron's further interrogation
of employees concerning their union membership and activities through the
guise of interviewing them as prospective witnesses, Respondent engaged in
interference , restraint , and coercion within the meaning of Section 8 (a) (1).
C. Discrimination
The evidence established that the six alleged discriminatees joined the union
on or about October 30, 1951, and that all of them participated, in varying
degrees, in union activities. Though denied by Respondent, there is scant
doubt under all the evidence that Respondent had knowledge of their union
membership or activities. The Huth-Marron speeches showed that Respondent
was fully aware of the organizational campaign among the employees. Bring-
ing that knowledge closer home was the evidence of Marron's activities, as
above found, and evidence of discussions between Jordan and Short (a line
supervisor) of union activities and of Sistrunk's disclosure of his union mem-
bership to Rutledge as well as to O'Byrnes.
Further dissipative of doubt was the evidence concerning the posting in the
washroom of three leaflets on which the names of employees active in the union
movement had been inserted by unknown persons. The first, a newspaper clip-
ping posted around November 8, contained the name of Hollis Jordan. The
"green rat" poster, about a week later, listed the names of all six alleged dis-
criminatees. The CIO leaflet, posted at some later time, listed the names of
J. C. Cline, Otis Jordan, Hollis Jordan, L. Plunkett, James Evans, R. Beel,
Otis Gordon, and John Sistrunk. Though the evidence does not suggest that
Respondent inspired or was responsible for the posters, it does establish that
all of them were exhibited to various supervisors.
It must, therefore, be found that Respondent had knowledge of the union
activities of the alleged discriminatees.
MISSISSIPPI PRODUCTS, INC. 1397
1. The discharge of Clinton Broadwater
Broadwater had been in Respondent's employ for 4 months in 1950 and had
returned around October 1, 1951. Approximately a week before Thanksgiving,
he applied to Turner and Carroll for a week's vacation so that he might go on
a hunting trip. Permission was refused him because his services were required
in his department at the time. On Thanksgiving night, Broadwater wrecked
his car in which he drove to work from his home, located approximately 40 miles
from Jackson. The next day he drove his father's car to work, and again
applied to Turner and Carroll for his vacation, which he proposed to use while
his own car was being repaired. Permission was again denied him on the ground
that his services were needed. Broadwater then claimed he would be unable
to report to work in any case because he had no way of getting there, and stated
that if he did not report on Monday morning they would know the reason. Car-
roll told Broadwater lie had better show up.
Broadwater did not report for 2 weeks because, he testified, his car repairs
were not finished sooner. He was entitled at best to a single week's vacation.
When Broadwater returned, he was informed by Carroll that he had been auto-
matically discharged under the Company's rule because of a continuous absence
of 3 days without leave or excuse. The evidence established that the rule was a
bona fide one and that it had been applied in numerous cases in the past, includ-
ing some in which employees had more than 3 years of service.
Respondent's evidence established that a number of employees, known to
Broadwater, lived in the general vicinity of Crystal Springs (which was 5 miles
from Broadwater's home), and that they regularly drove to and from work. The
Teche-Greyhound Bus Line also operated buses between Crystal Springs and
Jackson on schedules which were convenient for Broadwater's work shift, which
was from 7 a. in. to 3: 30 p. ni.9 Broadwater admitted that he attempted to
make no arrangements for transportation of any kind, contending that there
were none to be made.
The foregoing evidence, on its face, is obviously free of suggestion that Re-
spondent acted from discriminatory motives in discharging Broadwater. But
the General Counsel asserts that an unlawful motivation must nonetheless be
inferred from evidence, previously summarized, of Respondent's antiunion atti-
tude and from its alleged course of unfair labor practices. Though Respondent
had openly opposed the organization of its employees by the Union, its actions
are found herein not to have constituted unfair labor practices save in the in-
stances in which Marron engaged in unlawful interrogation and coercion. When
the evidence is considered as a whole, it cannot be found that the General Counsel
has sustained, by a preponderance of the evidence, the burden of proving that
Respondent discharged Broadwater because of his union membership and activi-
ties. W. C. Nabors Co., 89 NLRB 538, 540, enfd . 196 F. 2d 272 (C. A. 5), cert.
den. October 27, 1952.
At best the evidence raises no more than a suspicion that Respondent acted
from unlawful motives, and much of that suspicion is dissipated by the fact that
Respondent could reasonably have believed that Broadwater had deliberately
used his car wreck as an excuse to take, over Respondent's objection, the vaca-
tion which he had twice sought and which had been twice denied him. Broad-
water's conduct was aggravated by the fact that he extended his "vacation" to
2 weeks, though he was entitled at best to a single week off. But , in any event,
"a violation of the Act can not be established on 'suspicion alone' and in the
absence of a 'preponderance of evidence to show that Respondent was [unlaw-
9 Leave Crystal Springs 5 • 51 a . m. ; Arrive Jackson 6 : 30 a. m. Leave Jackson 4 p m
Arrive Crystal Springs 4: 50 p. m.
257965-54-vol 103-89
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully] motivated."' Strachan Shipping Co., 87 NLRB 431, 433, citing Punch h
Judy Togs, Inc., 85 NLRB 499.
It is, therefore, concluded and found that by discharging Broadwater, Re-
spondent - did not engage in discrimination within the meaning of Section 8 (a)
(1)• ,
2. The layoff of Vernon Purser
Purser was employed in February 1950, as a door hanger , but had been assigned
froth time to time to various other jobs in the assembly department when there
h-as no' door hanging to be done. He had, however, been laid off for 2 days in
October 1951.
Purser testified that on December 10, 1951, Turner sent him to Carroll's office,
stating that there was going to be a layoff. Carroll laid off Purser and three or
four other employees, stating that the action was due to lack of work. Carroll
did not specify how long the layoff would continue, but said it might be for weeks
or months, and he suggested that the employees apply for social security and seek
other jobs.
On December 21, Respondent offered Purser reemployment in the machine-
sanding department at a starting rate of 96 cents per hour ( as against his former
rate of $1.07). Purser did not reply to the offer.
Purser testified that on July 9, 1952, at a time when Respondent was adver-
tising for help, he applied to Carroll for work, without specifying any particular
job, and that Carroll refused to employ him because the Company's rule was not
to hire a person who quit (presumably referring to Purser's failure to respond
to the earlier offer of reemployment).
Purser's latter testimony was denied by Carroll, who testified that Purser
applied for his old job of door hanging, which was refused him because there
were no such jobs open at the time, nor in fact any other jobs in the assembly
department. Carroll testified that he pointed out that Purser had not seemed
to be interested in working for the Company inasmuch as he had failed to
answer the earlier letter offering him reemployment. Purser's answer was that
he was not intersted then because he had a job at the time. Carroll's testimony
is credited. In its ad of July 9, Respondent was advertising for inexperienced
and unskilled labor. Purser had ignored an earlier opportunity to return for
work at a lower rate than he had previously received, and there was no indi-
cation that he was interested in starting in as a beginner.
Respondent introduced excerpts from its records (See Appendix A hereof)
which established that the December 10 layoff covered 5 employees, all in the
assembly department, and that earlier layoffs in December had covered 9 em-
ployees in other departments. Ten of the total of 14 had accepted reemploy-
ment on various dates between December 26 and March 19.
The Respondent also developed evidence concerning the state of Purser's
health during the fall of 1951, but conceded that it was not a factor which affected
his selection for layoff. The General Counsel urges that the evidence is material,
however, as demonstrating that Respondent's offer of reinstatement was not
bona fide, since a job in the machine-sanding department could reasonably be
assumed to be injurious to one in Purser's condition (i. e., a collapsed lung).
Rutledge had testified without contradiction, however, that wood dust is non-
toxic. Whether or not Purser's condition might have been injuriously affected
by the job offered him, the record is devoid of evidence (save the General Coun-
sel's suggestion) that Respondent deliberately offered Purser the machine-
sanding job on the assumption that he would reject it because of his lung
condition. Indeed Purser's testimony contained no indication that his failure
to accept the job bore any relation to his health.
MISSISSIPPI PRODUCTS, INC . 1399
The foregoing evidence does not, on its face, disclose that Respondent was
discriminatorily motivated in laying off Purser. But here, as in Broadwater's
case, the General Counsel relies on the evidence of Respondent's antiunion
attitude and the instances of interrogation and coercion engaged in by Marron.
That evidence is, however, no more adequate to establish a discriminatory moti-
vation, in the face of the countervailing evidence, than it was in Broadwater's,
case. Such suspicion as it raises is allayed by these facts:
Respondent was making at the time a sizeable layoff because of business condi-
tions. Respondent shortly offered reinstatement to Purser, along with other
employees involved in the layoff, without the prodding of a charge (see footnote
10). There is no evidence that Respondent's handling of Purser's layoff and
offer of reinstatement differed discernibly from its customary practices as set
forth more fully in the ensuing section hereof. Indeed, though the Union was.
active at the time and though Purser identified himself in his testimony as a_
leader in the union movement, the Union raised no question of discrimination
on his behalf," despite its attempt otherwise to capitalize on the December
layoffs (see p. 1401 infra).
It is, therefore, concluded and found that Respondent did not, by laying off
Purser, engage in discrimination within the meaning of Section 8 (a) (3).
3. The layoff of January 25-28
The layoffs of Evans on January 25, and of Jordan, Sistrunk, and Gordon
on January 28, were part of a single personnel action (a reduction in force),
which was made by Turner on the asserted basis of shortage of work in the
assembly department. Respondent has at no time asserted any different basis
or reason for its action.
The four men were all in the assembly department and had been employed
for periods ranging roughly from 31/1 to 41/2 years. Sistrunk and Gordon were
repairmen, usually considered the "top-rated" jobs in the department. Evans
and Jordan were working at the time as a team of door hangers, but during the
course of their employment had frequently worked at other jobs when there
was no door hanging to be done.
Aside from the evidence summarized under preceding sections of this report,
the General Counsel offered little evidence to support the allegations of dis-
criminatory motivation in effecting the layoff, though its cumulative force was
accented here by the circumstance that the layoff reached the remaining four
employees whose names were listed on the green rat poster. The only additional
testimony of significance related to a conversation between Jordan and Short
in October 1952 "
30 Significantly , though the Union filed charges of discrimination immediately after the
January 25-28 layoff, it did not include Purser's name among the alleged discriminatees•
until its second amended charge was filed on May 20, 1952.
n Gordon's testimony that his overtime work "went boom" after he was pointed out as
a union organizer was disproved by the introduction of his timecards.
Testimony by Sistrunk and Gordon to a conversation with Turner a day or so after the
layoff offered no support for inferring a discriminatory motive. Indeed, Turner assured
them that lack of work was the sole basis of the layoff, though Gordon then asserted a
belief that his layoff was due to the Company's desire to prevent him from qualifying for
the 5-year benefits under the profit sharing plan.
Also without significance was Jordan 's testimony , developed on cross-examination, to
a conference which lie had sought and held with Hamil (Turner's successor in the assenr
bly department ), Turner, and O'Byrnes sometime after his reinstatement . Jordan's testi-
mony that he was questioned during that conference concerning his dealings with the
Union and the reasons for the employees ' union sympathies was denied by Turner and
O'Byrnes and is not credited.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jordan testified that Short informed him that since Turner had been trans-
ferred to another job, "I can tell you what happened the day that you was laid
off." Short then proceeded to tell Jordan that on that day and after Short
had borrowed Jordan from Murphy's line, Turner reprimanded Short for doing
so and ordered him to return Jordan to Murphy's line, which was shutting down,
so that Turner would have an excuse to lay Jordan off. Short also informed
Jordan that Turner had been trying to get rid of him "all the way through."
Jordan also testified that he recalled that on the day of his layoff when Short
ordered him back to Murphy's line, Short had then stated to him that Turner
"got mad because I moved you."
At another point in his testimony Jordan testified that his transfer to Short's
line and back to Murphy's had occurred on the 25th, before he left the plant at
noon.32 In his earlier testimony, however, he had clearly fixed the incident as
occurring on the day of the layoff, which also accorded with the date as specified
by Short in the alleged conversation between them.
Short was not called as a witness. Turner testified that he could not recall
the details of Short's temporary borrowing of Jordan, and at different points in
his testimony indicated that it could have occurred either on the 25th or the
28th. Turner denied that he reprimanded Short and denied that he told Short
that he was seeking an excuse to lay off Jordan. Turner admitted that he
directed Short to return Jordan to his own line, knowing that the line was going
to close down, but testified that his purpose was to clear up the line so that it
could be closed down as soon as possible (for reasons which are set forth in sum•
marizing Respondent's evidence).
Under all the circumstances, it is found that Short's borrowing of Jordan, and
the alleged conversation between Short and Turner, occurred on the day of the
layoff, and that Turner in directing Short to return Jordan, may well have
mentioned his intention of laying off Jordan because his line was going down.
There being no direct evidence to support Short's alleged version of his conversa-
tion with Turner, it cannot be credited on Jordan's hearsay account thereof over
Turner's express denial.'$ This does not require the discrediting of Jordan's
testimony, absent Short's denial, that Short in fact made the statements which
Jordan attributed to him. Had they been brought within the issues of interfer-
ence, restraint, and coercion by the General Counsel, they might appropriately
have been included with other statements found herein to be violative of Section
8 (a) (1).
Rebutting the General Counsel's case, Respondent offered evidence of its busi-
ness methods and operations, its work load, its employment policies, and its
practices in effecting layoffs and reinstatements.
Respondent's plant operates on a job-shop basis, taking contracts for certain
models and numbers of cabinets to specifications prescribed by the purchaser.
Operations sometimes fluctuate sharply, in direct relation to the volume of orders
on hand. To meet competition, Respondent sometimes contracts for early de-
livery dates, even when business generally is slack, with the result that oc-
casionally there will be a rush to complete production on a given order or model,
which will require overtime work in some cases though layoffs may be made
v Jordan had received permission from his line supervisor , Murphy, to get off to attend
a funeral.
13 Certainly it is to be questioned whether Short could correctly have stated that Turner
had been trying to get rid of Jordan "all the way through ," since the earlier December
layoff in the assembly department clearly afforded ample opportunity to dispense with
Jordan, if that had been Turner 's desire. Cf. New York Steam Laundry , 85 NLRB 1470,
1480.
MISSISSIPPI PRODUCTS , INC . 1401
contemporaneously or may be imminent" Such in fact was the situation at times
In 1951.
In January 1952, the models currently in production in the assembly depart-
ment were nearing completion. New models which were expected shortly to
reach the assembly department were smaller and cheaper and required less man-
power. In a regular weekly production meeting on January 25, between Gilman,
vice president in charge of operations, and the department heads, Turner was
informed that the mill departments had fallen behind on their own production
of the new models and that they would not reach the assembly department in
time to replace the expiring lines. The result was that 5 out of the 7 production
lines in the assembly department would shortly "go down," i. e., run out of
work.'$ Aside from the foregoing, Turner was criticized during the meeting
about his department and was informed that he was running behind his budget
and would have to cut costs.
Respondent also established that its employment policy at no time had taken
into account factors of seniority or length of service. In fact, Respondent had
notoriously disregarded those factors in making earlier layoffs, with the result
that the feeling had arisen among some of the employees that Respondent was
deliberately and unfairly selecting experienced employees with substantial length
of service in order to preclude them from qualifying for certain benefits at the
5-year mark under the profit sharing plan. Indeed, it was protection from such
an assumed practice which the Union emphasized as a "selling" point during its
campaign, as disclosed by the following circular distributed on December 13:
IT COULD HAVE BEEN YOU!
M. P. I., IN THE LAST COUPLE OF WEEKS, HAS BEEN IN THE MIDST
OF A LAY-OFF. SENIORITY, LENGTH OF SERVICE, NOR THE NUM-
BER OF YEARS AN EMPLOYEE HAS BEEN WITH THE COMPANY
APPARENTLY HAVE NOT BEEN CONSIDERED.
IT COULD HAVE BEEN YOU! YOU HAVE NO PROTECTION. THE
BOSS CAN LAY-OFF JUST AS HE SEES FIT-RIGHTLY OR WRONGLY!
WHAT GOOD IS A BONUS PLAN?-WHAT GOOD IS A PROFIT SHARING
PLAN?-WHAT GOOD IS A VACATION PLAN?-WHAT GOOD IS ANY
PLAN?-IF THE BOSS CAN LAY YOU OFF JUST BEFORE YOU ARE
ELIGIBLE FOR IT.
YOU NEED A UNION FOR A SQUARE DEAL.
JOIN IUE-CIO
Turner testified that he made the selection for layoff as a result of the Friday
conference and without further consultation with anyone. At that time there was
a single line carrying doors, with two teams of 2 men each. Turner decided to
keep one team to clean up stragglers and to rehang returned items. After leav-
ing the conference, he learned that Jordan had taken the afternoon off, thereby
splitting up his team. That fact influenced him to select the Jordan-Evans team
for layoff and to retain the Boone-Cline team. Turner accordingly laid off Evans
on Friday afternoon and laid off Jordan on Monday, along with repairmen Sis-
trunk and Gordon . Turner testified that his choice of Sistrunk was influenced
14 That evidence explains the testimony of some of the General Counsel 's witnesses that
some overtime was being worked at times when layoffs were being made.
18 Even when a line is "going down ," it takes a few days to clean up the final "strag-
glers" as they pass down the line, and employees are then laid off or assigned to other
work if it is available.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by poor attendance ( Sistrunk had twice been reprimanded by Rutledge in Novem-
ber for absenteeism), and that he chose Gordon because he felt that Gordon was
less valuable and could be spared more easily than others. Turner denied that
he was motivated by the question of their union membership and activities, and,
in fact, denied knowledge of such matters, though he admitted that he had been
shown 1 of the 3 washroom posters, which had several names on it.
Carroll, who conducted the termination interviews, testified credibly that he
informed the men that lack of work was the reason for the layoff and that they
might be out for several weeks. Since the layoffs were indefinite (i. e., for more
than a week), he avoided, in accordance with company policy, any definite com-
mitment fls to when they might be called back, He explained to them their
situation with reference to the retention of benefits, such as life insurance, hos-
pitalization, and profit sharing, and advised them particularly to keep the latter,
because if they withdrew from it, they would be ineligible for future participation
when recalled."
Because the General Counsel relies in part on the evidence surrounding the
subsequent offers of reinstatement to support his case of alleged discrimination,
it will be necessary to consider that evidence in some detail.
On February 8, Respondent offered Evans reemployment as a machine sander
at 96 cents per hour (against his previous rate of $1.07). Evans accepted the
offer, though he testified that the job was more difficult and less desirable than
the assembly work which he had formerly done. He testified further that other
jobs were open for which he was qualified and that in fact an employee was hired
the same day and placed in the assembly department. Evans admitted, however,
that he was without knowledge of the length of service of the other employee,
and there is no evidence as to how the job on which he was placed compared in
rate or desirability with the other one. Evans testified further that he had been
restored to his former job of door hanging some 2 or 3 months before the hearing.
On February 8, Respondent offered Sistrunk reemployment as a machine sander
at a rate of 96 cents per hour, and on March 5, reemployment at his former
classification of heavy repairman at the rate of $1.12 per hour. Sistrunk rejected
the first offer in an interview with Carroll, but stated his willingness to come back
as a repairman. When Sistrunk received the later offer, he was employed at
Pensacola, Florida. After a telephone call to Rutledge in which they discussed
questions concerning the reinstatement of benefits and the prospects of continued
employment, Sistrunk stated that if he decided to accept he would report the next
day. He did not come in.
On March 5, Respondent offered Gordon reemployment at his former classifi-
cation of heavy repairman at the rate of $1.12 per hour. Gordon made no
response because, he testified, at that time he had what he considered to be a
better job.
On March 5, Respondent offered Jordan reemployment as a subassembler at
the rate of 96 cents per hour (against his former rate of $1.07). Jordan testified
16 The General Counsel points to the wording of the forms used in the employees' applica-
tions for withdrawal from the Profit Sharing Pension Fune-and in form letters from the
Fund relating to such withdrawals as supporting his contention that Respondent did not
In fact consider its action as a mere layoff and that It had no intention of offering rein-
statement until the filing of the amended charge on January 30, forced Its hand. Thus,
both of those forms peed the term "termination " of employment It appeared from all
the evidence, however, that the forms were those customarily used in connection with
laid-off employees , and that the application forms had properly encircled on their face
the code figure 4 , which covered cases of "Reduction of Force ( Layoffs, because of lack of
Work.)"
MISSISSIPPI PRODUCTS, INC. 1403
that the subassembly job was less skilled than his former job, but that after a
conference with Carroll, he accepted the job despite Carroll's unwillingness to
make any promises concerning reinstatement to his former job. Jordan admitted
that there was no door hanging being done at the time, but testified that there
were other jobs being done for which he was qualified and that they were being
done by employees who had less seniority than he. Jordan also admitted that
be was shortly moved up to door hanging at 191.07 an hour, and that he was later
promoted by Turner to repairman at $1.12 per hour, which position he has held
for some 6 or 8 months. Jordan also admitted that he lost none of his service
credit and was reinstated with full benefits.
It is also significant that the first 2 of the above offers of reinstatement were
made on February 8, on which date Rutledge testified that he was informed of an
anticipated sharp increase in plant operations and was directed by Gilman to
begin the hiring of new employees. Rutledge accordingly began to place on
February 10, a series of advertisements in the Jackson newspapers for new,
unskilled employees.
Respondent also offered in evidence a number of excerpts from its records,
prepared during the hearing, which contain considerable data as to the number
of layoffs, reinstatements, and rehirings during material periods. The most sig-
nificant of that data has been assembled in Appendix A, hereof, which contains
in table 1, a summary of layoffs and reinstatements in all departments during
November, December, and January, and in table 2, a tabulation of the number
of reinstatements and rehirings in the assembly department from October 1, 1951,
through February 1952. As is reflected thereby, a total of 34 employees were
laid off in November (2), December (18), and January (14), 20 of whom (includ-
ing Evans and Jordan) have accepted offers of reemployment. Respondent also,
of course, offered reemployment to all of the alleged discriminatees shortly after
their respective layoffs.
Concluding Findings
Considering the case first, as it was postured by the General Counsel's evidence
alone, it can be found, of course, that a prima facie case was made out that
Respondent was discriminatorily motivated in making the January layoffs, or
at least in making the particular selection which it did. Thus Respondent's
attitude had been shown to be openly antiunion, and through Marron it had
engaged in interrogation and in certain coercive statements which constituted
interference with the organizing campaign." When that prior attitude and
conduct was coupled with Turner's layoff of the four remaining employees whose
connection with the union movement was given notoriety by the green rat poster
(particularly in view of the length of service of the employees involved), suffi-
cient basis was laid, absent adequate explanation by Respondent, to justify an
inference that the layoff was in fact motivated by a desire to discourage union
membership and activities.
And it is true, as the General Counsel contends, that findings of discrimination
frequently rest on inference, since direct evidence to violate the Act is rarely
obtainable. N. L. R. B. v. Piedmont Wagon & Mfg. Co., 176 F. 2d 695 (C. A. 4) ;
Hartsell Mills v. N. L. R. B., 111 F. 2d 291 (C. A. 4). It is also true that the
disproportionate selection of union and nonunion members for layoff, though not
alone sufficient to establish a discriminatory motive, is persuasive evidence
iT Respondent's evidence established, however, that Marron had no connection with the
layoff and that he was otherwise without influence on questions of employment.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof, shifting to the employer the burden of giving an adequate explanation 18
See, e. g., N. L. R. B. v. Chicago Steel Foundry Co., 142 F. 2d 306 (C. A. 7) ;
Montgomery Ward d Co. v. N. L. R. B., 107 F. 2d 555 (C. A. 7).
The Respondent offered evidence, however, which it contends was clearly suf-
ficient to rebut the prime facie case and to negative the inference of a discrimina-
tory motive. Thus , briefly , it showed the following : That the layoff itself was
due to a slackening of operations and to Turner's attempt to reduce costs in the
assembly department, which was currently under criticism. That Respondent
had consistently disregarded factors of seniority and length of service in making
earlier layoffs (cf. Kansas Nebraska Natural Gas Co., 90 NLRB 1423, 1937-9;
Old Town Shoe Co., 91 NLRB 240, 282-3), to the extent that some, of the em-
ployees had suspected and charged, rightly or wrongly, that Respondent unfairly
selected senior employees for layoff in order to deprive them of their profit-
sharing benefits. That the Union had attempted to capitalize on that precise
point in its December 13 leaflet relating to earlier December layoffs, which had
involved, among others, five employees in the assembly department, including
Purser. That Respondent made no significant , or even discernible, departures
from its usual policy or methods, either in effecting the layoff or in the offers
of reinstatement.
But the General Counsel, arguing that a finding of discrimination is nevertheless
justified on the basis of the evidence as a whole, makes certain contentions which
must be considered further.
The General asserts that the "astounding" circumstance that the layoff affected
only the 4 remaining men listed on the green rat poster furnished preponderant
evidence of discrimination (but see footnote 18, supra), despite Respondent's
explanations. Certainly, under any view of the case, it was a suspicious circum-
stance that the lightning should have struck just those 4 men, though its
significance was substantially diminished by the following facts :
The CIO leaflet listed the names of four additional employees as prominently
as the alleged discrimatees, but none of them was laid off or discharged. One
of them was J. C. Cline, of the Cline-Boone team of door hangers, which Turner
had retained in preference to Jordan and Evans. Under the General Counsel's
theory, Turner's decision to lay off one team of door hangers faced him with the
dilemma of risking charges of discrimination regardless of which team he
selectedl8
Furthermore, Turner's testimony contained a reasonable explanation of his
selection of the 4 men in question, though the General Counsel attempted to
develop that he should have made some different selection on the basis of length
of service, or experience, or superiority of some sort. The dilemma which faced
Turner on the door hanging teams has been mentioned. So far as length of
'Though the General Counsel urges that such evidence should be found to be pre-
ponderant evidence of discrimination , relying on Sandy Hall Iron & Brass Works , 69 NLRB
355, enfd. 165 F. 2d 660 (C. A. 2) ; Salant & Salant, Inc., 92 NLRB 417, those cases do not
support his position here, since in Sandy Hill the employer offered no explanation what-
ever, and in Salant, the employer 's explanations were found incredible ( see 27 LRRM
1097, 1100-1).
19 No evidence was offered of the extent to which organization had proceeded in the
assembly department, but it is a fair inference from the General Counsel's evidence that
the campaign was further advanced there than in other departments Assuming a high
ratio of union members in the assembly department , the fact that the January layoff should
have included four union members would not be highly suspicious (cf. John S. Barnes Cor-
poration, 92 NLRB 578, 598-600, Lingerie, Inc., 101 NLRB 1374), particularly since the
December layoff had apparently included only one ( 1. e. Purser).
MISSISSIPPI PRODUCTS, INC. 1405
service went, Boone's compared roughly with Jordan's and Evans '. Nor was
there any persuasive showing of superiority as between the 2 teams, and none
that Turner's selection was on any basis other than that to which he testified.
There is similarly no evidence which refutes Turner's testimony that his selection
of Sistrunk was influenced by poor attendance record, or that Turner's appraisal
of Gordon was incorrect or unsound.
The General Counsel also contends that Respondent' s offers of reinstatement
were not bona fide, being caused by the filing of the Union's charges, and that
in any event the offers were inadequate because Respondent did not, except in
Evans' case, offer comparable employment. The evidence fails to support those
contentions. Purser's case alone is strong refutation for the first point since
he was offered reinstatement long before any charge of discrimination was filedl0
Furthermore, Respondent's records establish that it made numerous layoffs and
reinstatements throughout all plant departments during periods both prior and
subsequent to the time it was charged with discrimination on January 30. The
second point, that the offers were inadequate, is answered by Respondent's dis-
r egard of seniority and length of service as factors affecting employment rights.
Respondent's good faith was further indicated by its subsequent restoration of
Evans and Jordan to their former jobs and by Turner's promotion of Jordan
to the "top-rated" job of repairman.
Viewed in its entirety, therefore, the evidence here, though raising a stronger
suspicion than in the Broadwater and Purser cases, yet fails to constitute that
preponderance by which it is necessary for the General Counsel to establish that
Respondent was illegally motivated in laying off the four employees in question
or in offering them reinstatement at the time and in the manner it did so.
Strachan Shipping Co., Punch & Judy Togs, and W. C. Nabors Co., supra;
Radio Industries 101 NLRB 912; cf. Popeil Brothers, Inc., 101 NLRB 1083. It
is, therefore, concluded and found that Respondent did not, in making the Janu-
ary 25-28 layoff or the offers of reinstatement, discriminate against the em-
ployees involved in violation of Section 8 (a) (3) ; and it will, therefore, be
recommended that all allegations of discrimination be dismissed.
Upon the basis of the above findings of fact and upon the entire record in
the case the undersigned makes the following:
CONCLUSIONS of LAW
1. Respondent 's activities , occurring in connection with Respondent 's operations
as described above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow thereof.
2. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
3. By interfering with , restraining , and coercing its employees in the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act,
"It is also to be noted that under the General Counsel's theory, the filing of the
charges again faced the Respondent with a dilemma , since a failure to offer reinstatement
to the alleged discriminatees would certainly have been a strong Indication of discrimina-
tion in view of the expansion of operations which began on February 8.
The placing of ads for new employees was plainly without significance in view of that
expansion and the fact that the series began concurrently with the offers of reinstatement
to two of the four men involved In the layoff.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which unfair labor practices affect commerce within the meaning of Section
2 (6) and (7) of the Act.
4. Respondent has not engaged in discrimination within the meaning of
Section 8 (a) (3) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
Table 1
Layoffs in all departments-November, December, and January
Name Department
Date
Laid off Date Reemployed
Charles E Garner______________________________ Veneer Mill ------- 11-14-51
Ann Armstrong--------------------------------- Salvage ----------- 11-16-51
Joe Johnson ------------------------------------ Veneer Mill ------- 12- 4-51
Willie Cotton--- ------------------------------- Veneer Mill_______ 12- 4-51 Returned 1-17-52
W. C Smith ----------------------------------- Veneer Mill ____-__ 12- 4-51 Returned 1-17-52
Collins Wiggins -------------------------------- Veneer Mill_______ 12- 4-51 Returned 1-17-52
J A Campbell--------------------------------- Veneer Mill_______ 12- 4-51 Returned 3-19-52
Harden Barnes_________________________________ Veneer Mill_______ 12- 4-51 Returned 12-26-51
C. G. Barnette--------------------------------- Veneer Mill_______ 12- 5-51 Returned 1-17-52
Major L. Page---------------------------------- Rub-------------- 12- 7-51 Returned 2-25-52
Sammie L Fields_______________________________ Rub-------------- 12- 7-51 Returned 2-13-52
Ogden Slade------------------------------------ Assembly_________ 12-10-51
Louis H. Clark--------------------------------- Assembly--------- 12-10-51
Louis E. Puckett_______________________________ Assembly_________ 12-10-51 Returned 12-26-51
James A. Kirkland_____________________________ Assembly--------- 12-10-51 Returned 1-2-52
Vernon E. Purser_______________________________ Assembly--------- 12-10-51 Offered reemployment
12-21-51
Jessie D. Cotten________________________________ Rub-------------- 12-17-51 Returned 8-14-52
Cleaven Lacy---------------------------------- Rub-------------- 12-17-51
Harvest Hall ----------------------------------- Rub-------------- 12-26-51
Clyde Fortenberry_____________________________ Rub-------------- 12-26-51
Havclene Frazier________________________________ Finishing_________ 1- 9-52 Returned 1-21-52
Willie J. Williams______________________________ Fimshing________- 1- 9-52 Returned 1-21-52
Will Dotson ------------------------------------ Finishing_________ 1- 9-52
Israel Johnson__________________________________ Finishing--------- 1- 9-52 Returned 1-22-52
T. W. Trust --------------------------- Finishing_________ 1- 9-52 Returned 1-21-52
Henry Hickingbottom__________________________ Trim & Pack- ---- 1- 9-52
Albert Nicholson, Jr ------------- ______________ Finishing _________ 1- 5-52 Returned 2-25-52
Marzie C. Ivy---------------------------------- Finishing--------- 1-11-52
Mary Lee Lofton______ ________________________ Finishing.______-_ 1-11-52
Mittie M. Stevenson........................... Finishing--------- 1-11-52 Returned 2-11-52
James P. Evans________________________________ Assembly_________ 1-25-52 Offered reemployment
2-8-52
Otis Gordon------------------------------------ Assembly --------- 1-28-52 Offered reemployment
3-5-52
Hollis Jordan _________________________ Assembly --------- 1-28-52 Offered reemployment
3-5-52
John Sistrunk__________________________________ Assembly--------- 1-28-52 Offered reemployment
2-8-52
MISSISSIPPI PRODUCTS, INC . 1407
Table 2
Reinstatements and New Hirings in the Assembly Department
October 1, 1951, to February 28, 1952
10-1-51-------------------------------------------- 2 Reinstatements
10-10-51------------------------------------------- 3 New Hires
10-15-51------------------------------------------- 1 New Hire
10-15-51------------------------------------------- 1 Reinstatement
10-16-51------------------------------------------- 1 Reinstatement
10-18-51------------------------------------------- 1 Reinstatement
2-11-52-------------------------------------------- 1 New Hire
2-12-52-------------------------------------------- 1 Reinstatement
2-13-52-------------------------------------------- 1 Reinstatement
2-19-52-------------------------------------------- 1 Reinstatement
2-20-52-------------------------------------------- 1 Reinstatement
2-11-52-------------------------------------------- 1 New Hire
2-25-52-------------------------------------------- 1 New Hire
2-27-52-------------------------------------------- 2 New Hires
2-28-52-------------------------------------------- 1 New Hire
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union member-
ship, sympathies, and activities or as to the possession of union cards, nor
will we engage in such interrogation through the guise of interviewing em-
ployees as prospective witnesses ; we will not point out employees as union
organizers or warn employees to avoid union adherents.
WE WILL NOT in any like manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL UNION OF ELECTRICAL, RADIO
AND MACHINE WORKERS, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage
in other concerted activities for the purposes of collective bargaining and
other mutual aid or protection, or to refrain from any or all of such activity
except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or refrain from becoming members of
the above-named Union, or any other labor organization, except to the extent
that the right to refrain may be affected by a lawful agreement requiring
membership in a labor organization as a condition of employment.
MISSISSIPPI PRODUCTS, INC.
Employer
Dated -------------------- By -------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.